Sixth Circuit Rejects Certification Of Novel "Negotiation Class"

The United States Court of Appeals for the Sixth Circuit has reversed a district court order certifying a novel “negotiation class” under Federal Rule of Civil Procedure 23 in the multi-district litigation addressing opioidrelated claims brought by municipalities across the country against some of the largest drug distributors and pharmacies.  In Re: National Prescription Opiate Litigation, ---F.3d----, 2020 WL 5701916  (September 24, 2020).¹  The Sixth Circuit held that a negotiation class was outside the bounds of and “not authorized by the structure, framework or language” of Rule 23.

A “negotiation class” is a class certified to negotiate a settlement only: generally, (1) class members are given notice of a negotiation class, including the formula for allocation of any settlement reached, (2) class members are given their only opportunity to opt out before the certification, and (3) if a settlement is reached, all class members are given the chance to vote on